Hawkins v. United States, 6592.

• Decision Date: 23 April 1973
• Docket Number: No. 6592.,6592.
• Parties: Norman HAWKINS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

304 A.2d 279

Norman HAWKINS, Appellant, v. UNITED STATES, Appellee.

No. 6592.

District of Columbia Court of Appeals.

Argued January 16, 1973.

Decided April 23, 1973.

J. Edward Day, Washington, D. C., appointed by the court, for appellant.

Lee Cross, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Douglass J. McCollum, Asst. U. S. Attys., were on the brief, for appellee. John C. Lenahan, Asst. U. S. Atty., also entered an appearance for appellee.

Before NEBEKER, PAIR and HARRIS, Associate Judges.

NEBEKER, Associate Judge:

This appeal is from a conviction of carrying a pistol without a license,¹ which was charged as a felony because of a previous like conviction. Appellant challenges (1) the admission of the gun and incriminating statements made to the police, which statements the trial court found were made after appellant waived his Miranda² rights; and (2) the sufficiency of the evidence. After reviewing the record and briefs, and hearing arguments, we affirm.

Upon hearing a loud noise like a gunshot from her bedroom, and a cry from her grandson who was in the room, Mrs. Bessie Ivey ran into the room to find a hole in the ceiling, plaster on the child and on the floor, and a bullet on the floor. Appellant's brother, who lived directly above Mrs. Ivey, testified that appellant was in his (the brother's) apartment on the afternoon of the shooting. While appellant's brother was temporarily out of the room, he heard a gunshot and, upon returning, appellant stated that he had been reaching into his coat pockets for something and had accidentally pulled the trigger. At this point appellant left the apartment stating he would be back. Appellant's brother never saw the gun.

When the police responded to a call by Mrs. Ivey they saw the hole in the ceiling, the plaster dust, and a 9 mm. bullet with plaster on it given to them by Mrs. Ivey, who had recovered it from the floor. Upon going upstairs to determine the source of the gunshot, the police were told by appellant's brother what had transpired. Approximately 10 to 15 minutes after the police arrived, appellant returned, breathing hard and perspiring. He was frisked and a knife was recovered. He was then placed under arrest and advised of his Miranda rights.³ Upon being asked if he understood his rights, appellant, by his demeanor and responses, indicated understanding. Appellant was then advised as to what his brother had told the police and was asked the whereabouts of the gun. Appellant initially refused to reveal the location of the gun, stating he did not want to get others in trouble. The police assured him that he would be the only one to get in trouble. This exchange was repeated about three times and appellant then agreed to take the police to where the gun was located. During the questioning, appellant's brother and several police officers were present.

Appellant took the police to a location approximately 6 blocks away. Prior to departing for this location, after arriving but prior to entering, and after entering but prior to going to one of the apartments, appellant requested that the police allow him to recover the gun alone. The police refused to do so and appellant then took them to one of the apartments where appellant met another man and told him he had come there for the package he had previously left. The other man, after hesitating and being told by appellant that it was all right, then produced a loaded 9 mm. gun with one round expended. The police immediately took the gun from appellant's friend. Appellant then identified the gun as the one he had left there and stated that it was his.

It is argued that it was error for the trial court (1) to deny appellant's motion to suppress the gun and his statements since they were obtained in violation of his right to presentment without unnecessary delay; and (2) to deny appellant's motion for acquittal since the government assertedly failed to prove the essential element of possession of the gun.

A valid waiver of an individual's Miranda rights is also a waiver of his Mallory⁴ right to presentment without unnecessary delay. Pettyjohn v. United States, 136 U.S.App.D.C. 69, 419 F.2d 651 (1969), cert. denied, 397 U.S. 1058, 90 S. Ct. 1383, 25 L.Ed.2d 676 (1970). In determining whether an individual has made a knowing and intelligent waiver of his Miranda rights, the courts consider many factors. Among those factors are (1) the individual's prior experiences, including those with the criminal justice system which tend to indicate an awareness of his rights, Mitchell v. United States, 140 U.S. App.D.C. 209, 434, F.2d 483, cert. denied, 400 U.S. 867, 91 S.Ct. 109, 27 L.Ed.2d 106 (1970); Pettyjohn v. United States, supra; cf. Hensley v. United States, D.C.Mun. App., 155 A.2d 77 (1959); (2) whether the individual was questioned in private, United States v. McNeil, 140 U.S.App.D.C. 3, 433 F.2d 1109 (1969); (3) whether the individual repudiates his confession or alleges coercion or trickery, id.; and (4) the delay encountered between the individual's arrest and when the confession is obtained, Mitchell v. United States, supra.

The record shows that appellant had had previous experiences with law enforcement. It was therefore permissible to consider that factor in determining whether appellant was aware of his rights. Id.; Pettyjohn v. United States, supra. The confession was obtained shortly after the police arrived and after the required Miranda warnings were given and appellant revealed he understood the warnings. The questions were asked and the subsequent confession obtained in the brother's apartment and in his presence, and also in the presence of appellant's friend. Appellant did not allege coercion or trickery by the police and did not repudiate his confession. Indeed, appellant appeared to be more concerned with involving others than in incriminating himself as evidenced by his initial reluctance to take the police to the location of the gun. Based upon this evidence, the trial court permissibly found that appellant made a knowing and intelligent waiver of his Miranda rights and that he spoke voluntarily. By so doing, he necessarily waived any right to prompt presentment, a proceeding for the effectuation of those rights.⁵ Appellant also argues that since the trial judge commented that he had great doubts about the officers' conduct in repeatedly asking appellant to take them to the location of the gun, he was not satisfied beyond a reasonable doubt that the confession was voluntary. See Scurry v. United States, 120 U.S.App.D.C. 374, 347 F.2d 468 (1965). We view the question of voluntariness, that is, admissibility, as encompassing both "waiver" and "coercion". United States v. Watson, 469 F.2d 362 (5th Cir. 1972). Appellant relies on Pea v. United States, 130 U.S.App.D.C. 66, 397 F.2d 627 (1967), for the proposition that a judge must be satisfied beyond a reasonable doubt that a confession is voluntary before it will be admitted into evidence. This was the burden of proof imposed by the United States Court of Appeals for the District of Columbia Circuit through exercise of its then⁶ supervisory power over the administration of justice in the District of Columbia. We hold that the reasonable doubt standard no longer prevails in light of language in Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). In Lego, the Supreme Court held that the Constitution did not require the states to apply the reasonable doubt standard to the voluntariness question. That decision expressly left the states free to set a higher standard than a preponderance of the evidence in determining whether a confession was voluntary. Although Lego did not involve a federal prosecution, the Supreme Court did speak on this matter as it relates to federal superintendence. The Court said, "It is no more persuasive to impose the stricter standard of proof as an exercise of supervisory power than as a constitutional rule." Id. at 488 n. 16, 92 S.Ct. at 626. Therefore, in light of this supervening language by the Supreme Court, "the proper standard for a federal...